"You arranged everything according to your own taste, and so
I got the same tastes as you - or else I pretended to. I am really
not quite sure which - I think sometimes the one and sometimes the
other." - Henrik Ibsen, A Doll's House
Henrik Ibsen's masterpiece, A Doll's House, premiered
on stage in 1879 and chronicled the married life of its
protagonist, Nora Helmer, who cut deals and manipulated family
finances in secret, while her husband and his cohorts assumed that
she spent her days ruminating over recipes, fashions and children.
Throughout his work, Ibsen paints a picture of a marriage in which
only the man has a voice and the authority to determine his
family's path. Long a staple piece in any good literature program,
the action in A Doll's House offers a glimpse into the
dynamics of gender often at play in the arena of mediation. The
role of gender in mediation is frequently overlooked but critical
to successful dispute resolution. The topic also requires some
uncoupling.
There are two areas in mediation in which gender dynamics are
most important and often ignored: the first is environment and the
second is process. One of the great benefits of mediation is that
it allows the parties to create an environment in which a case can
be discussed and, hopefully, resolved. By the time a legal matter
reaches mediation, the parties involved are in some level of
distress; if the parties are engaging in mediation, they are
already mired in a legal dispute. When parties get to mediation, by
definition something has gone wrong - a marriage, a business
venture, a construction project, a medical procedure. Whatever the
circumstance, clients turn to lawyers to guide them through the
legal process, a trajectory that can be bewildering, frustrating
and, at times, frightening. With the encouragement of the court
system, more lawyers recommend mediation to their clients to
resolve their disputes. The mediation process allows the parties to
select by mutual agreement the time and location of mediation and,
most important, the mediator.
Typically, lawyers bear the responsibility of recommending a
mediator to their clients. In selecting a mediator, lawyers
consider breadth of experience, subject matter expertise, demeanor,
reputation and any number of other characteristics. Lawyers also
tend to gravitate toward mediators with whom they work well. In
choosing a mediator, it is critical to understand how a client
views the world and use that information in selecting a mediator.
Some clients do not work well with women. Some cases arise out of
subject matter that is gender-sensitive. Some clients, raised in
cultures that adhere to very specific gender roles, will not have a
productive mediation experience if those roles are challenged from
the outset by the selection of the mediator. In choosing a
mediator, lawyers have a responsibility to create the best
environment in which a case can be resolved. The selection of a
mediator goes beyond considerations of gender equality or gender
neutrality; the choice of mediator should always take into
consideration the personality and background of the client. Lawyers
should ask themselves, "In this instance, is there a gender dynamic
at play with my client or decision-maker that should factor into
the selection of the mediator?" The answer may be "no," but if the
answer is "yes," that issue must be addressed before, and not
after, the selection of the mediator.
Once the parties have selected a neutral and their case moves
into mediation, gender dynamics often come into play in the
mediation process. Those gender dynamics are sometimes wrapped into
family structures. In many cases, regardless of the subject matter,
members of the same family attend mediation, either because they
are party litigants or they are present to provide support to
family members who are party litigants. In either instance, the
role of the mediator is not to judge and alter the gender dynamics
at play, but rather to observe those dynamics, understand them, and
then craft a process most likely to allow the parties to resolve
their dispute.
Contemporary culture has coined the phrase "mansplaining," which
is commonly understood to describe a situation in which a women
makes a statement that is ignored or disregarded, followed by a man
rephrasing or repeating the same statement, at which time the
statement is acknowledged by the listener. This phenomenon plays
out frequently in the mediation arena and it is not limited to
male/female stereotypes. In one family, the members may always
defer to a male family member as the speaking authority; in one
company, the officers may always defer to the female department
head as the final word. Regardless of the dynamic, an attentive
neutral can dramatically improve the process of mediation by
recognizing a strong gender dynamic and making an effort to
encourage all voices to be heard.
Some gender dynamics are physical. Is there a person in the room
to whom others turn their back when speaking? Is there someone who
constantly interrupts another? Whether or not those kind of
behaviors happen along gender lines, a mediator can neutralize
tension caused by those tendencies. Most mediators know how to
manage a room: a mediator adds value to the process by making sure
that people who want to speak can do so. A neutral can recognize
when an individual is being pushed aside or dismissed or is
struggling to express a viewpoint. An effective neutral can step in
and create space for that viewpoint to be heard. People who are
heard are empowered. People who are empowered can make decisions.
By creating an environment and a process in which people see that
their thoughts, opinions and viewpoints are at least acknowledged,
a mediator lays the groundwork for the resolution of a dispute.
Challenging a gender dynamic for the sake of doing so in
mediation is not a productive use of time or resources. However, a
neutral can observe the influence of gender roles in any given
mediation and accommodate them. Part of that accommodation is to
create a process in which each participant, regardless of their
place in the gender dynamic pecking order for discussion or
decision-making purposes, is heard and valued. Attention by a
mediator to this level of engagement helps to establish a forum in
which parties experience true ownership in the process and are
therefore more committed to and engaged in crafting a solution to
their legal dispute.